National Consumer Disputes Redressal
Rakesh Anand & Anr. vs M/S. Royal Empires (Royal Minaar) on 9 April, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1378 OF 2016 (Against the Order dated 05/09/2016 in Complaint No. 29/2014 of the State Commission Punjab) 1. RAKESH ANAND & ANR. SON OF LATE SH. NARINDER RAJ ANAND, R/O. HO NO. 579, TOP FLOOR, SECTOR-4, PANCHKULA HARYANA 2. RASHMI ANAND WIFE OF SH. RAKESH ANAND R/O. HOUSE NO. 579, TOP FLOOR, SECTOR-4, PANCHKULA HARYANA ...........Appellant(s) Versus 1. M/S. ROYAL EMPIRES (ROYAL MINAAR) THROUGH ITS MANAGING DIRECTOR, SH. JIWAN GARG AND SH. PRINCE GARG HAVING ITS SITE OFFICE KISHANPURA, ZIRAKPUR, DISTRICT.S.A.S. NAGAR, MOHALI, PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Appellant : For the Respondent :
Dated : 09 Apr 2018 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Appellants
:
Mr. Arun Singla, Advocate
For the Respondent
:
NEMO
PRONOUNCED ON: 9th April 2018
ORDER
PER DR. B.C. GUPTA, PRESIDING MEMBER This appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986, against the impugned order dated 05.09.2016, passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as "the State Commission") in Consumer Complaint No. 29/2014, Rakesh Anand & Anr. vs. M/s. Royale Empires (Royale Minaar), filed before them by the appellants/complainants vide which, the said complaint was ordered to be dismissed.
2. Briefly stated, the facts of the case are that the appellants/complainants, who are husband and wife, filed consumer complaint no. 29/2014 before the State Commission, saying that they had booked a built-up 3 BHK flat, having covered area of 1495 sq. ft. and super area of 1850 sq. ft. with total sale consideration of Rs. 45 lakhs with the opposite party (OP) builder and paid the booking amount of Rs. 8,60,000/- to them on 27.05.2011. The flat no. 503, Block 'A' was allotted to them vide allotment number dated 29.05.2011 and an 'agreement to sell' was also executed between the parties, according to which, time was the essence of contract and the possession of the flat was to be handed over within 21 to 24 months from the date of the agreement. However, the OP builder failed to deliver the possession of the flat within the time stipulated in the agreement, despite approaching them a number of times and also lodging a police complaint against them, besides sending legal notice to them. Alleging deficiency in service on the part of the OP builder, the complainants filed the consumer complaint in question.
3. The complaint was resisted by the OP builder by filing a written statement before the State Commission, in which they stated that the complainants had made payment of the booking amount of Rs. 8.60 lakhs only to them, but they failed to make payment of instalments of the remaining amount, as laid down in the agreement between the parties. The OPs alleged that due to fall in the prices of property, the persons who booked the flats with them, had not made full and final payment in respect of the flats. The OPs were facing financial difficulties and hence, could not raise construction on the project in time. The OPs also stated that they had the right to forfeit the money deposited by the complainant, if the balance instalment were not paid by them in time.
4. It is made out from the order passed by the State Commission that the OP builder appeared before them and filed their written version to the complaint, but after that, they stopped appearing before the said Commission and were proceeded against ex-parte. Despite giving opportunities, the OP builder failed to lead any evidence before the State Commission. However, the State Commission dismissed the consumer complaint vide impugned order by observing that the complainants had failed to make payment of instalments to the OP builder, as per the payment plan and hence, under clause 3(e) of the agreement between the parties, the OP builder had a right to forfeit the amount deposited by the complainants. Being aggrieved against the said order of the State Commission, the complainants are before this Commission by way of the present first appeal.
5. The notice of the appeal was sent to the respondent/OP builder, who did not enter appearance despite service. The arguments of the learned counsel for the appellants were then heard in detail.
6. The learned counsel for the appellants contended that as per the payment plan, they had paid the booking amount of Rs. 8.60 lakhs with the OP builder, but discovered that the OP builder had not obtained the necessary approvals from the competent authorities for raising construction on the project. The learned counsel stated that a report was made against the OP builder with the local police as well. There was a compromise with the builder on 31.03.2013 before the local police, in which the OP builder committed that he shall return the amount deposited by the complainant within seven months of the agreement, but despite that, the OP builder failed to return the amount deposited with them. The learned counsel stated that they had already got a loan sanctioned from the Bank for making payment to the OP builder, but since the OP builder failed to raise construction on the project, they did not make the remaining payment. The OP builder absented himself from proceedings before the State Commission as well, and did not lead any evidence before the State Commission against the complainants in question. The complainants only wanted their money back from the OP builder alongwith 18% interest as laid down in clause (1) of the 'Agreement to Sell' entered between the parties.
7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
8. The admitted facts in the case are that the complainants booked a flat with the OP builder for a total consideration of Rs. 45 lakhs and paid the booking amount of Rs. 8.60 lakhs and also entered into 'Agreement to Sell' with the OP builder. The possession of the said flat was to be handed over within a period of 21 to 24 months. From the written version filed on record by the OP builder, it is clear that they failed to raise construction of the project, as per the time schedule laid down in the agreement and hence, were not able to hand-over the possession of the property to the complainants in time. It is true that the payment plan has been mentioned in the agreement between the parties and that the complainants did not make payment as per the said Plan, but the contention made by the complainants that they had already got the loan sanctioned from the Bank, but refrained from making payment, finding that there was no construction activity on the spot, is not without any reasonable basis. It was obligatory on the part of the OP builder to have raised the construction in time and to have delivered the possession of the property in time as per the agreement.
9. The most intriguing part in the whole affair is the absence of the OP builder in proceedings before the State Commission as well as before this Commission. Although, the OP builder made appearance before the State Commission in proceedings in the consumer complaint and filed the written statement, but they failed to produce their evidence before the State Commission, despite several opportunities having been granted to them. In fact, the OP builder stopped making appearance before the State Commission and had to be proceeded against ex-parte. Even in proceedings in appeal before this Commission, the OP failed to put in appearance, despite the service of notice upon them. This conduct on the part of the OP builder amounts to an indirect admission of the allegation of deficiency in service made against them by the complainants. It is clear from these facts that the complainants could not be expected to go on making payments to the OP builder as per the payment plan, when they could discover that the OP builder was not in a position to hand over the possession of the property in time.
10. In the impugned order, the State Commission have mechanically placed reliance on clause 3(e) of the agreement between the parties, which says as follows:-
"(e) In case the Second Party fails to pay the instalment with interest within six months of the due date, the first Party shall have the right to cancel the allotment and forfeit the total money deposited. In exceptional circumstances, the First Party may at its sole discretion condone the delay in payment, by charging interest @ 18% p.a."
11. By no stretch of imagination, it is possible to accept the proposition that if the complainants fail to make payment of instalment as per the payment plan indicated in the agreement, the OP Builder shall have the right to forfeit the total money deposited by the complainants. The consumer fora cannot be expected to accept the terms and conditions of an unconscionable contract between the parties, which goes against the interest of the consumers. The matter has been discussed by this Commission in the order passed in Revision Petition No. 3860/2014, DLF Ltd. vs. Bhagwanti Narula, decided on 06.01.2015. It has been held by this Commission in that matter that even if the complainants want to withdraw from an allotment for any reason, the OP builder does not have any right to deduct more than 10% of the earnest money for the property deposited by them and they shall have to pay the balance amount to the complainants, after making deduction of the said earnest money. In the case in hand, however, the OP builder has not been able to provide any reasonable explanation as to why they could not fulfil their part of contract and hence, they are liable to refund the money deposited by the complainants alongwith suitable interest. In clause (1) of the 'Agreement to Sell', it has been laid down as follows:-
"1. If for any reason whatsoever whether within or outside the control of the First Party, the whole or part of the project is abandoned, no claim will be preferred by the Second Party except that the total amount paid by the Second Party with 18% interest p.a. shall be refunded to the Second Party."
12. In the instant case, when the OP builder has failed to file their evidence before the State Commission and has failed to put in appearance before this Commission, it is crystal clear that they are not in a position to handover the property to the complainants within the time stipulated in the agreement. We have no option, therefore, but to accept the version of the appellant/complainant that the OP builder is liable to refund the amount deposited by them alongwith interest @ 18% per annum in terms of the terms and conditions entered between the parties.
13. Based on the discussion above, we allow this appeal and set aside the order passed by the State Commission, being perverse in the eyes of law. The consumer complaint no. 29/2014 filed by the complainants is allowed and the OP builder is directed to pay the amount of Rs. 8.60 lakhs deposited by them alongwith interest @ 18% per annum from the date of deposit of the said amount with the OP builder till realization. The compliance of this order shall be made within a period of four months of the date of this order. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER